0420060037
05-11-2007
David Dunn, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
David Dunn,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Petition No. 0420060037
Request No. 05A20097
Appeal No. 07A10044
Agency No. 4D-270-0015-98
DECISION ON A PETITION FOR ENFORCEMENT
On March 16, 2006, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in David Dunn v. United States Postal Service,
Request No. 05A20097 (November 13, 2002). This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. � 1614.503. Among
other items, petitioner alleged that the agency failed to fully comply
with the Commission's order to pay him appropriate back pay with interest
and other damages for the period from July 19, 1997 through January 16,
1999, as well as past pecuniary damages in the amount of $3,808.80 for
mileage from the years 2001 and 2002, with interest.1
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the basis of sex (male) in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. Petitioner appealed the agency's final decision to the
Commission, and in Appeal No. 07A10044 and Request No. 05A20097, the
Commission found that there was no basis to disturb the Administrative
Judge's (AJ) finding of discrimination on the basis of sex. As such,
the Commission ordered the agency, in part, to give petitioner back pay
and other benefits for the period from July 18, 1997 through January 16,
1998, with interest, as well as paying petitioner compensatory damages
in the amount of $1,500.00. The order also specified that the agency
had to offer petitioner the next available carrier position in the Troy,
North Carolina Post Office or at another post office in the Greensboro,
North Carolina District which was agreeable to petitioner. Pursuant to
petitioner's request for reconsideration, the Commission ordered the
agency to reimburse petitioner for his mileage between his home and
the Ramseur, North Carolina Post Office, for a total of $6,199.20.
In addition, the Commission stated that the period for petitioner's back
pay was to be from July 18, 1997 to January 16, 1999. See Dunn v. USPS,
EEOC Request No. 05A20097 (February 28, 2002). Petitioner then filed
his first petition for enforcement, alleging that the agency failed
to comply with the Commission's order as set forth in our Decision on
Request for Reconsideration. Petitioner's counsel alleged that petitioner
had not been offered an appropriate position by the agency, nor had he
been provided with back pay or reimbursement for mileage as stated in
our previous order.
The Commission reminded the agency of its obligation to provide petitioner
with back pay for the period from July 18, 1997 through January 16, 1999,
with interest and all other benefits pursuant to 29 C.F.R. � 1614.501.
Further, the Commission reminded the agency of its obligation to pay
petitioner non-pecuniary damages in the amount of $1,500.00, and past
pecuniary damages in the amount of $6,199.20 for mileage. In addition,
in light of the agency's failure to comply with the Commission's
orders in our initial decision dated August 15, 2001 and our decision
on reconsideration dated February 28, 2002, the Commission found that
petitioner was entitled to an award of interest on the payment of
$1,500.00 for compensatory damages, commencing August 15, 2001 until
the date the agency issues a check in the applicable amount. See April
v. Department of Agriculture, EEOC Appeal No. 01963775 (June 9, 1997)
(the Commission awarded interest on proven compensatory damages where the
complainant timely submitted the claim, but the agency took no action
on the claim for some 20 months). In light of the agency's failure to
comply with the Commission's Orders in our decision on reconsideration
dated February 28, 2002, the Commission also found that petitioner was
entitled to an award of interest on the payment of $6,199.20 for mileage,
commencing February 28, 2002 until the date the agency issues a check
in the applicable amount.
On March 16, 2006, petitioner submitted the petition for enforcement
at issue. Petitioner contends that the agency failed to comply with the
Commission's prior order by: (1) not paying him back pay for the year
of 1998; (2) not paying him an additional $3,808.80 for reimbursement
of travel expenses incurred in 2001 and 2002; (3) not paying him
an additional 23% above evaluated pay to reflect actual earnings he
missed; (4) not paying $1,750.00 reimbursement for attorney's fees;
(5) interest on the above sums; (6) not crediting him with 6.88 days of
annual leave and 6.88 days of sick leave, in addition to leave owed to
him for the omitted year of 1998; (7) not paying for medical treatment
and medication he needed due to the agency's actions; and (8) not paying
him a reasonable amount of compensation for the additional expense,
time, aggravation and distress caused to him for delay.
Initially, we note that our order in Request No. 05A20097 stated that
petitioner should be given appropriate back pay for the period from
July 18, 1997 through January 16, 1999, with interest, and all other
benefits pursuant to 29 C.F.R. 1614.501. A review of back pay information
provided by the agency reflects that petitioner was given back pay for
the period from July 18, 1997 through January 16, 1998 with interest and
other benefits. However, we note that while the Commission's initial
decision finding discrimination stated that petitioner would be given
back pay through January 16, 1998, the Commission's decision pursuant
to petitioner's request for reconsideration and initial petition for
enforcement stated that the period for petitioner's back pay was to
be from July 18, 1997 to January 16, 1999. The agency's back pay
computations detailed that petitioner began receiving back pay and
interest as of August 8, 1997 through January 23, 1998, and back pay
was stopped between the period starting February 6, 1998 and January
22, 1999. The agency resumed calculation of petitioner's back pay with
interest on February 5, 1999 through April 1, 1999. The agency's back
pay calculations dated May 16, 2003 indicated that petitioner received
$72,062.812 in adjusted gross back pay plus interest. We note that our
Order stated that petitioner should receive back pay plus between July
18, 1997 and January 16, 1999. As such, to the extent that the agency
failed to pay petitioner back pay between January 16, 1998 and January 16,
1999, the agency is directed to pay petitioner back pay plus appropriate
interest for the relevant period at issue.
Addressing petitioner's allegations regarding the additional $3,808.80
in reimbursement in travel expenses, we note that our previous Decision
on a Petition for Enforcement stated that the agency shall issue to
petitioner past pecuniary compensatory damages in the amount of $6,199.20
for mileage, with interest. The Commission's prior decision ordered the
agency to reimburse petitioner for his mileage between his home and the
Ramseur, North Carolina Post Office, after the period when petitioner
was discriminatorily not selected for a carrier position at the Troy,
North Carolina Post Office and was required to commute to the Ramseur
Post Office. Petitioner alleged that the Commission's Order reflected
an award for mileage only through the year 2000, and he incurred an
additional $3,808.80 in mileage expenses for the years 2001 and 2002.
We note that the record indicates that the agency did not comply with
the Commission's initial order dating from 2002, and thus petitioner was
not placed in an appropriate position until early 2003. There appears
to be no dispute between the parties that the agency paid petitioner the
entire sum which was ordered by the Commission to be paid for mileage,
with interest. However, to the extent that the agency failed to comply
with our order regarding placement in an appropriate position, and
petitioner continued to incur expenses in 2001 and 2002 for mileage, we
order the agency to reimburse petitioner for his mileage, with interest
during this period. Petitioner shall submit documentation to the agency
demonstrating that he incurred the relevant mileage during the period
the agency failed to comply with the Commission's order in 2001 and 2002.
Petitioner alleges that the agency failed to reimburse him the amount
of $1,750.00 for attorney's fees. We note that our prior Decision
stated that pursuant to 29 C.F.R. � 1614.501(e), an award of attorney's
fees shall be paid by the agency. The attorney is required to submit a
verified statement of fees to the agency -- not to the Equal Employment
Opportunity Commission, Office of Federal Operations -- within thirty
(30) calendar days of this decision becoming final. The agency is then
required to process the claim for attorney's fees in accordance with 29
C.F.R. � 1614.501. Thus, to the extent that petitioner was to be paid
$1,750.00 for attorney's fees, which the agency has not paid, we note
that petitioner must submit the verified statement of fees to the agency,
and the agency shall process the claim for attorney's fees in accordance
with 29 C.F.R. � 1614.501.
However, the Commission must deny petitioner's contentions regarding the
agency's calculation of back pay, annual and sick leave, medical treatment
and medication needed by petitioner due to the agency's actions and
additional compensation. Initially, the Commission notes that it finds
no basis to support petitioner's contention that the agency should pay
him an additional 23% above his evaluated pay to reflect actual earnings
he missed between 1997 and 1999, when he was not employed at the Troy,
North Carolina Post Office. A review of the record indicates that
the agency provided documentation for the back pay award and interest
which was paid to petitioner. The agency calculated the back pay award
based on the salary petitioner would have earned as a carrier at the
Troy, North Carolina Post Office or at a comparable post office in the
Greensboro, North Carolina District, with a contractual increase from
May 18, 2002 included. We find that it is too speculative to concur
with petitioner's allegation that he should be awarded back pay for the
evaluated pay he would have earned, rather than the actual earnings he
would have earned had he not been discriminated against by the agency
and been hired as a carrier at the Troy, North Carolina Post Office.
In addition, we cannot agree with petitioner's allegation that the
Commission must order the agency to credit him with 6.88 days of annual
leave and 6.88 days of sick leave, in addition to the leave he should have
been entitled to for the omitted year of 1998.3 In so finding, we note
that none of the Commission's previous decisions regarding remedies for
petitioner's allegations of discrimination ordered the agency to restore
annual or sick leave to petitioner, and thus we decline to address the
issue of restoration of annual or sick leave in the instant decision.
Further, we find there is no basis to conclude that complainant has
proven that he is entitled to restoration of annual or sick leave as
make-whole relief due to his discriminatory termination from the Troy,
North Carolina Post Office.
Finally, we decline to address petitioner's contention that he should
also be compensated by the agency for medical treatment and medication
caused by the agency's actions, nor will we address his contention that
he should receive compensation for distress caused by the agency's delay.
We find petitioner has failed to proffer any evidence which establishes
that he incurred expenses for medical treatment or other expenses caused
by the agency's actions, and we previously ordered the agency to pay
petitioner $1,500.00 in non-pecuniary compensatory damages due to the
agency's act of discrimination.
ORDER
1. To the extent it has not already done so, petitioner shall be
given appropriate back pay for the period from July 18, 1997 through
January 16, 1999, with interest, and all other benefits pursuant to 29
C.F.R. � 1614.501. Petitioner shall cooperate in the agency's efforts
to compute the amount of back pay owed and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amounts owed by the agency, the agency shall issue a check to
the petitioner for the undisputed amount within thirty (30) calendar
days of the date the agency determines the amount it believes to be
due. Petitioner may petition for enforcement or clarification of the
amounts in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
2. To the extent it has not already done so, within thirty (30) days of
the date this decision becomes final, the agency shall issue to petitioner
past pecuniary compensatory damages in the amount of $6,199.20 for
mileage, with interest. The agency shall also issue to petitioner past
pecuniary damages for mileage, with interest, for the years of 2001 and
2002, during the time petitioner was employed at the agency's Ramseur,
North Carolina Post Office. Petitioner shall cooperate in the agency's
efforts to compute the amount of past pecuniary compensatory damages
owed and shall provide all relevant information requested by the agency
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____5/11/07_____________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced petition number.
2 We note that the calculation of back pay plus interest indicates
$119,060.40 in gross back pay, offset by $59,117.66 in adjusted gross
back pay and $12, 945.15 in interest.
3 Complainant apparently alleges in the petition for enforcement that he
is entitled to leave restoration for the period between July 18, 1997 and
January 16, 1999. However, we note that none of the Commission's prior
decisions have found that complainant was entitled to leave restoration as
a remedy for the agency's act of discrimination, and as such we decline
to order leave restoration in the instant decision. In so finding, we
note that while we found complainant was discriminated against by not
being selected for a position at the Troy, North Carolina Post Office,
there is no evidence that complainant lost any annual or sick leave due
to the agency's act of discrimination.
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0420060037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0420060037